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Workers' Compensation Board

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Case # G1296007
Date of Accident: 03/19/2015
District Office: NYC
Employer: Flyinkolors NY Inc
Carrier: Rochdale Insurance Company
Carrier ID No.: W188502
Carrier Case No.: 1891043-1
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Ginarte O’Dwyer Gonzalez Gallardo & Winograd
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's late application for administrative review should be considered.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim because she found the claimant to be incredible.

The Board Panel majority declined to review claimant's application because it was untimely, finding that the claimant's attorneys failed to "provide a sufficient or reasonable explanation for the untimely filing."

The dissenting Board Panel member would have considered the merits of claimant's untimely application, finding that claimant's counsel "reasonably relied to their detriment on the WCLJ's failure to issue her decision as an EC-23R, and instead to file it as an EC-23."

In the claimant's application for Mandatory Full Board Review filed April 28, 2016, claimants' counsel argued that its failure to file a timely application for review should be excused, noting that "the very fact that the Board Panel split over whether to consider the merits of the claimant's application for review shows that a reasonable excuse for the claimant's [delay] in filing the application for review was offered."

The carrier argues in its rebuttal filed May 18, 2016, that the decision of the Board Panel majority be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for an alleged work-related accident that occurred when the claimant slipped and fell at work on March 19, 2015. The record was fully developed by way of the lay testimony of the claimant and the company's president during the hearing held on September 9, 2015.

After the testimony was completed, the parties placed summations on the record, the WCLJ did not render a decision from the bench, but simply stated, "Reserve decision" (transcript, 9/9/15 hearing, p. 29). A decision was issued on September 14, 2015, on form EC-23 (Notice of Decision), in which the WCLJ disallowed the claim.

The claimant's attorney filed an application for administrative review on November 21, 2015, which was more than one month late. The claimant's attorney asserted that the application should be considered despite its lateness because the WCLJ's decision was "issued as a 'Notice of Decision' not as a 'Reserved Decision.' Since the decision was made after the hearing was over and outside the presence of the parties it should have been labeled a Reserved Decision." Claimant's attorney went on to explain.

We are a large law firm and have protocols for the handling of mail received. Reserved Decisions, Proposed Decisions and Administrative Decisions are brought to the immediate attention of any attorney as they represent new information which needs to be reviewed and possibly acted upon. Notices of Decision are simply filed away as they are just a notification of a Judge's decision at a hearing of which the attorney is already aware. As a result of the Judge's decision being mislabeled, the adverse decision did not come to the attention of the attorney until the time to appeal had expired.

LEGAL ANALYSIS

"'Workers' Compensation Law § 23 requires a party seeking review of a WCLJ decision to file a written application for review with the Board within 30 days of the filing of the decision' (Matter of Hyland v Matarese, 56 AD3d 841 [2008] [citations omitted]; see 12 NYCRR 300.13[a], [e][1][i]; Matter of Toner v Michael Hanley Moving & Stor., 40 AD3d 1199 [2007], lv denied 9 NY3d 808 [2007])" (Matter of Stojanov v Eastman Kodak Co., 72 AD3d 1153 [2010]).

The Board is vested with broad discretion to reject a late application for review in the absence of a legitimate explanation for the untimely filing (Matter of Toner v Michael Hanley Moving & Storage, 40 AD3d 1199 [2007]; Matter of Noury v Airway Services, 46 AD3d 1014 [2007]).

In this case, the only explanation provided for the late application was that the WCLJ's decision disallowing the case was issued via a notice of decision (form EC-23) instead of a reserved decision (form EC-23R), and the claimant's attorney's office has a procedure whereby no one reads notices of decisions before filing them away. Accepting the truth of the law firm's assertions, their refusal to read the contents of the notice of decision cannot be accepted as a reasonable excuse to justify accepting a late application for administrative review of that decision.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that the claimant's attorney's explanation for the late appeal is unreasonable and that the late filing should not be excused.

CONCLUSION

ACCORDINGLY, the claimant's application for review is DENIED and the WCLJ decision filed September 14, 2015, REMAINS IN EFFECT. No further action is planned by the Board at this time.